By Thapelo Molefe
The Special Tribunal has ordered former architect and principal agent Minenhle Makhanya to pay R147.2 million to the National Treasury after finding that his conduct during the security upgrades at former president Jacob Zuma’s Nkandla residence was unlawful and caused significant financial loss to the state.
Makhanya was ordered to pay R147,269,444.06 following an application by the Special Investigating Unit (SIU).
The judgment was delivered on Wednesday.
The tribunal found that Makhanya’s appointment and subsequent conduct in the Nkandla project were unlawful and resulted in significant financial loss to the state.
Makhanya was appointed principal agent by project manager DJ Rindel on 27 August 2009 without a competitive bidding or open tender process. The tribunal found there was no emergency or other lawful basis for bypassing procurement requirements.
It also found that Makhanya was not registered as a supplier with the Department of Public Works (DPW) when he was appointed.
The project was initially approved at R27.9 million after security assessments by the South African Police Service (SAPS) and South African National Defence Force (SANDF) identified measures required to protect Zuma, his family and residence after his election as president.
However, the SIU found that works authorised and overseen by Makhanya went beyond the security requirements.
These included tunnels with an exit and three lifts, 20 additional accommodation units for security personnel, a laundry, visitors’ lounge, basement parking for the clinic, VIP parking, a fire pool, the relocation of 4.5 households, internal roads, air-conditioning and extensive landscaping in the high-security area.
The additional structures and works cost R68.5 million.
The tribunal found that Makhanya authorised and certified payments for structures and services that were not required by the security assessments.
He also failed to obtain the necessary written approvals for variations and over-designs, certified payments above market-related costs and approved payments for work that had either not been performed or had not been properly accounted for.
The tribunal further found that Makhanya authorised payments totalling R54.8 million to Moneymine Investments 310 CC and Bonelena Construction and Projects, in breach of contractual requirements to safeguard DPW’s interests.
Makhanya was found to have breached his statutory, professional and contractual obligations under the Architectural Profession Act, the applicable Code of Professional Conduct, DPW’s Manual for Architects and the Joint Building Contracts Committee agreement.
The tribunal rejected his argument that he had acted within his authority by implementing instructions and decisions from SAPS and SANDF.
It also dismissed his arguments that the SIU’s claims had prescribed or were time-barred.
Judge K Pillay said Makhanya was being held responsible despite other people being involved in allowing the cost of the project to increase.
“It is regrettable that the first defendant (Makhanya) stands alone as the person against whom the Special Investigating Unit has launched action, as he clearly did not act alone in allowing the costs of the upgrade at Nkandla to balloon,” Pillay said.
“However, as architect and principal agent, he bore the responsibility to ensure that the second defendant (DPW) did not incur fruitless and wasteful expenditure.”
The tribunal declared invalid the contract concluded on behalf of the then DPW director-general for Makhanya’s appointment.
It also ordered Makhanya to pay the legal costs of the proceedings, including the costs of two counsel.
The SIU said it had accepted Makhanya’s submission that R7.8 million should be deducted from its claim.
The amount relates to non-security-related upgrades which Zuma repaid as a contribution.
The deduction was taken into account in determining the amount Makhanya must repay.
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